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Breath Alcohol Testing Laws in NH

There are two types of breath tests that are offered in New Hampshire. First there is the Preliminary Breath Test and then there is the Post-Arrest Breath Test.

The Preliminary Breath Test

The preliminary breath test is a breath test that is offered on a small portable device that some police officers carry around with them. If an officer thinks that you have been drinking and he wants to get an idea of how much alcohol is in your system, he may ask you to blow into a small black device.

Every police department has a few of these things on hand. Most attorneys and legal professional who deal with DWI cases on a regular basis should tell you that the preliminary breath test device is a piece of junk. There are several instances where a person scores a certain number on the device and then when they go to the police station and take a secondary breath test, the numbers are way off (even when taking into account the amount of time that has passed for alcohol levels to rise or fall).

Are Portable Breath Test Machines Accurate?

A problem with the portable breath test devices is that frequently they are not inspected or calibrated by a state official. Maintenance logs are not usually kept on these machines (at least we haven't seen any in the past 9 years). The paperwork is frequently lost by departments. Also, the portable breath test machines have a tendency of measuring the alcohol that may be in your mouth. Most standard police training books instruct officers to wait 20 minutes before they have someone take a preliminary/portable breath test – given that the machine can be thrown off by a recent sip of booze, mouthwash, and other contaminants. You will be hard pressed to find an officer who is going to sit on the side of the road and stare at you for twenty minutes before they give you a portable breath test. Many states do not even allow portable breath tests to be admitted in court given their unreliability, but as with many of its laws, NH marches to its own drum.

Some folks in the scientific community have a problem with the portable breath tests because they do not us an infrared technology to measure alcohol concentration. A refusal to take a preliminary breath test cannot be used against you in court. So, if you have had a drink recently and you are asked to blow into this toy, politely decline.

The Post-Arrest Breath Test

The post arrest breath test is a breath test that is administered with an intoxilyzer machine. The intoxilyzer machine is a stationary machine that is commonly found in most police stations. These machines are registered with and maintained by the Department of Safety. Unlike the portable breath test machine, these intoxilyzer machines are usually well cared for and well documented by the State.

After you are arrested for DWI, the police officer will drive you to the police station. You will be introduced to the intoxilyzer. The officer will read you your Administrative License Suspension rights. Meaning, he will tell you what the consequences are for refusing to take a breath test such as the loss of your license. He will also tell you that if you take the breath test and blow over the legal limit (.08 if you are over 21, .02 if you are under 21) you are also going to lose your license.

You will be asked to make a decision: To take or not to take? If you decide to take the breath test, the officer will watch you for 20 minutes to make sure that you don't put anything in your mouth. The officer will tell you to not burp, belch, or raise your hands to your face. Any kind of item or bodily fluid in your mouth could effect the breath test reading. Thus, the officer is trying to eliminate any potential for contamination of the result.

The officer will have you blow into a tube as hard as you can. A ticket will print out with your purported reading. The breath test ticket is admissible in court, and will be used against you if you blew over the legal limit. Almost all judges, prosecutors, and police accept the breath ticket readings as gospel.

Do I Take a Breath Test or Not?

This is a personal decision and every case is different. Most experienced attorneys will tell you that it is not a good idea to take a breath test. This must be pretty good advice, because if you follow your local papers you will see that whenever police officers or prosecutors get arrested for DWI, they almost always refuse the breath test too (as well as the field sobriety tests)!

If you don't take the breath test, yes, there is a very good chance that you will have your license suspended by the DMV for a period of time. But, you can be certain that if you get convicted of a DWI in court, you will certainly lose your license and end up with a criminal conviction on your record. The best evidence that an officer can use against you in court is a breath ticket showing that you were over the legal limit. So, why help them convict you?

You might also find it interesting to know that there are many police departments in NH that will prosecute you for a DWI even if you have blown UNDER THE LEGAL LIMIT. That's right. There are police officers who will still charge you with a DWI if you pass a breath test. How is that possible? Well, some police officers think that their opinion or personal observations are more reliable than a breath test that says you are not impaired. Imagine that – you take a breath test, you pass, and you still get charged with DWI.

The bottom line is this: you have no idea how well or poorly you will do on a breath test if you have been drinking. It all depends on how much you had to drink, what you had to drink, when was your first drink, your last drink, the size of the drink, , the alcohol volume of the drink, your medications, how much food you had to eat, is your body tired, have you burped, are you experiencing regurgitation etc.

Then you have to worry about whether breath test machine is working properly, is the officer administering the test properly, is the tube fitted correctly, etc.. As you can see those are a lot of variables to be worried about when taking a test that could very well slam the door shut on any chance you have of escaping a DWI conviction.

If you have any questions about breath tests, then please feel free to call or e-mail us.

The Law Office of

351 Main Street

Nashua, NH 03060

Phone: 603-595-5525

Fax: 603-595-5533

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The law firm of Shepherd and Osborne represents clients throughout New Hampshire including Manchester, Nashua, Concord, Bedford, Merrimack, Belknap County, Carroll County, Cheshire County, Coos County, Grafton County, Hillsborough County, Merrimack County, Rockingham County, Strafford County and Sullivan County.